SJHB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 1619

SJHB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1619 (14 June 2023)

Division:GENERAL DIVISION

File Number:          2023/2231

Re:SJHB

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Britten-Jones

Date:14 June 2023

Place:Sydney

The Tribunal sets aside the decision under review dated 3 April 2023 and substitutes a decision to not refuse to grant the applicant a bridging visa

....................[sgd]....................................................

Deputy President Britten-Jones

CATCHWORDS

MIGRATION – refusal to grant bridging visa on character grounds – whether discretion to refuse to grant a visa should be exercised – applicant committed domestic violence – primary considerations of protection and expectations of the Australian community – strong countervailing consideration of the best interests of minor children and ties with Australia – weighing up all considerations – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth)

CASES

SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673

SECONDARY MATERIALS

Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)

REASONS FOR DECISION

Deputy President Britten-Jones

14 June 2023

1. This is an application for review of a decision to refuse to grant the applicant a bridging visa (the visa) under s 501(1) of the Migration Act 1958 (the Act).[1]

   [1] All references to legislation are to the Migration Act 1958 unless otherwise stated.

2. The applicant brought this application to the Tribunal on 6 April 2023 pursuant to s 500(1)(b).

   The LEGISLATIVE SCHEME

3. Section 501 deals with the refusal or cancellation of a visa on character grounds. Relevantly, it provides:

   (1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

   Note: Character test is defined by subsection (6)
   …

   (6)       For the purposes of this section, a person does not pass the character test if:

   (a)The person has a substantial criminal record (as defined by subsection (7))

4. The applicant does not pass the character test due to his conviction for offences involving domestic violence.  The only issue for the Tribunal is whether to exercise a discretion to refuse to grant the visa having regard to the principles and considerations in Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99).

   Direction 99

5. The purpose of Direction 99 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.

6. The relevant principles that the Tribunal must apply to the task of deciding whether to refuse a non-citizen’s visa are set out in paragraph 5.2 of Direction 99 as follows:

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non­ citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

   (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

   (5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

   (6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non­ citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

7. In making a decision under s 501(1), the following are primary considerations:

   (a)protection of the Australian community from criminal or other serious conduct;

   (b)whether the conduct engaged in constituted family violence;

   (c)the strength, nature and duration of ties to Australia;

   (d)the best interests of minor children in Australia; and

   (e)expectations of the Australian community.

8. In making a decision under s 501(1), other considerations must also be taken into account, where relevant, including (but not limited to):

   (a)legal consequences of the decision;

   (b)extent of impediments if removed;

   (c)impact on victims; and

   (d)impact on Australian business interests.

9. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[2]

   [2] Direction 99 [7].

   BACKGROUND

10. The applicant was born in Tonga and came to Australia in 2010 when he was 22 years old.  The effect of his visitor visa was to allow him to stay in Australia until 15 November 2011.  However, he stayed in Australia unlawfully because he met his current partner with whom he fell in love and later had two children.  Their daughter was born in December 2012.  They separated in 2015 on an amicable basis and resumed their relationship in 2017.  Their son was born in February 2019.  They broke up again for a short period around the end of 2019.  In early September 2020, the applicant committed domestic violence against another woman with whom he had a sexual relationship.  He was arrested for assault and then remanded in custody on 10 December 2020.  He was convicted upon a guilty plea on 9 April 2021.  Since being released from prison on 6 October 2021, the applicant has been detained at Villawood Immigration Detention Centre.

11. On 3 July 2019, the applicant applied for a protection visa which was later refused.  In association with that application, he was granted a bridging visa which ceased on 16 July 2020 after which he remained in Australia unlawfully.

12. On 28 December 2022, the applicant applied for the visa on the basis that he intended to apply for a partner visa sponsored by his current partner.

    CONSIDERATION

    Protection of the Australian community – 8.1 of Direction 99

13. When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 99, I give consideration below to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 99

14. The applicant’s official criminal record shows convictions for five offences involving domestic violence committed in early September 2020.  The offences for which he was convicted were assaults occasioning actual bodily harm, destroy or damage property, stalking and intentionally choking a person with recklessness.  The applicant’s conduct included punching and kicking his victim repeatedly, placing his foot on her throat and choking her with both hands, putting a blade to her neck, smashing her mobile phone and threatening her.  The offending involved physical violence over a period of many hours against a woman and would be viewed very seriously by the Australian government and community.  His victim lost consciousness and suffered serious injuries. There is a further conviction for contravening an apprehended domestic violence order (AVO) in December 2020 which related to phone calls and messages.  He pleaded guilty to these offences and was sentenced on 9 April 2021 to imprisonment for 18 months with a non-parole period of 10 months and a community corrections order for three years.

15. The seriousness of the offending is reflected in the custodial sentence, but I note that there is no suggestion that the applicant has engaged in any other violent behaviour towards other women or at all. Indeed, the applicant’s criminal offending is confined to the appalling violence in September 2020 and the less serious breach of the AVO in December 2020.  His relationship with his current partner began in 2010 and he has never been violent or behaved inappropriately towards her or their children.

16. In summary, the applicant’s offending was very serious but was confined to a limited period of his life. It is a significant factor and weighs against granting the visa.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 99

17. In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[3] As required by paragraph 8.1.2(2) of Direction 99, I also have regard to, cumulatively:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)information and evidence on the risk of the non­ citizen re-offending; and

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    [3] Direction 99 at 8.1.2(1).

18. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[4] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

    [4] (2014) 225 FCR 424; [2014] FCA 673.

    Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 99

19. If the applicant were to engage in further similar criminal offending, then the nature of the harm would be extremely serious because of the physical and mental injuries associated with domestic violence.

    Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 99

20. The applicant contends that there is a low risk of re-offending because his life has been crime free except for the conduct in 2020, the fact that he has engaged in appropriate programs of rehabilitation and because of certain protective factors considered below. 

21. Prior to being sentenced, the applicant engaged in a one day anger management and domestic violence course.  The sentencing Magistrate took into account this rehabilitative step and accepted that he was sorry for his conduct.  In prison, the applicant engaged in a further three day anger management and domestic violence course.  Whilst in detention he completed 12 separate online courses which included domestic violence, anger management, depression management and drug and alcohol abuse.  The applicant accepted in oral evidence that he needed to do these courses and said that he had learnt practical steps to deal with his anger issues.  He expressed remorse and exhibited an understanding of the impact of his violent behaviour on his victim and her family.  I was impressed by the applicant as a witness.  He found it hard to talk about his past offending but he said he was sorry and I believe that he is genuinely committed to a future with his partner and children.  I consider that he has engaged in appropriate rehabilitation and that he has successfully rehabilitated himself such that it is unlikely that he will reoffend. 

22. If released, he will have the support of his older brother and his loving partner and her extended family.  There were numerous expressions of support made by the family members of both the applicant and his current partner.  This included ten witnesses who gave oral evidence and numerous others who provided statutory declarations or statements to the Tribunal.  The applicant’s older brother gave evidence that he will help him reintegrate into the community.  Similar evidence was given by his partner’s cousin who has work for him in his transport company.  The applicant will also have support from his church and Tongan community.  This supportive and stable environment makes it more likely that he will not reoffend.  Further, the applicant expressed a genuine desire to be a good father to his children.  Numerous witnesses attested to observing the applicant’s loving and caring behaviour towards his children and his current partner.  The applicant understands that if he does reoffend then he will lose contact with those that he loves.  This represents a very strong incentive to not reoffend.

23. In conclusion, I find that the applicant has a low risk of further offending and that he does not present an appreciable risk to the Australian community.

    Conclusion as to protection of the Australian community – 8.1 of Direction 99

24. The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[5]  The applicant has committed serious crimes, but they were confined to a short period and he has engaged in rehabilitation with respect to the domestic violence and anger management.  I reject the respondent’s contention that the nature of his offending is so serious that any risk of reoffending is unacceptable. He has demonstrated his rehabilitation by his good behaviour in prison and detention.  He will be in a very supportive and stable environment if he is released. Once reunited with his children, I believe he will do everything to support them and be a good father.  He is a low risk of re-offending.  However, there remains a slight risk of re-offending and therefore, the protection of the Australian community is a factor that weighs against the applicant, but I would not give it significant weight.

    [5] Direction 99 at 8.1(1).

    Family Violence – 8.2 of Direction 99

25. The applicant has engaged in a very serious episode of domestic violence but I take into account that it was an isolated.  It is significant that the applicant has never been violent towards his current partner with whom he has had a relationship since 2010.  They plan to get married and all the evidence suggests they have a very loving relationship.  The applicant has accepted responsibility for his violent behaviour and expressed his understanding of the impact it had on the victim and her family.  He has made appropriate efforts to rehabilitate himself by engaging in numerous courses related to anger management and domestic violence.

26. I do not downplay the horrific nature of the violent acts that the applicant committed and it is a factor that weighs most strongly against the grant of the visa.

    Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 99

27. This primary consideration provides at paragraph 8.3 of Direction 99:

    (1)  Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

    (2)  In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

    (3)  The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

    (4)  Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

    (a)the length of time the non-citizen has resided in the Australian community, noting that:

    i.considerable weight should be given to the fact that a non­ citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

    ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

    iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non­ citizen began offending soon after arriving in Australia.

28. The immediate family members of the applicant are his two children whose interests I will consider below.  However, I do consider the close relationship between the applicant and his daughter and son represents a very significant tie to Australia.

29. The applicant’s current partner should also be considered an immediate family member for the purposes of this factor.  They have been in a relationship since 2010.  They have lived together for many years and they intend to marry.  They clearly love each other very much.  That love has been observed by members of both of their families including by the partner’s mother who has lived with them.  A refusal of the visa will have a devastating impact on the applicant’s partner and their children.  The applicant’s conduct as a partner and father represents a positive contribution to the Australian community.

1. The applicant’s brother referred to him as a loving uncle to his children.  A visa refusal would have a negative impact on the brother, his wife and their children who will be considered separately under the factor dealing with the best interests of minor children.

2. The Pastor of the church that the applicant attended provided a written statement and oral evidence in support of the applicant.  He has known the applicant since he came to Sydney in 2010.  The applicant attended his church and participated in church activities including the choir and charitable projects.  These activities by the applicant represent a positive contribution to the Australian community.

3. The applicant was in the community for 10 years before he engaged in any criminal conduct.  Since that confined period of criminal behaviour in 2020, the applicant has been in prison and in detention where he has taken steps to rehabilitate himself.  In prison it was noted that his conduct was exemplary and that he was respectful to the prison officers.  He was employed as a ‘Wing Sweeper’ and received good ‘Case Notes’ from the staff.  The applicant has understandably become depressed and had some difficulties when in detention.  He found that environment very difficult but he has largely stayed out of trouble.

4. I take into account the lengthy period of time the applicant has resided in the Australian community and that he has significant family and community ties.  This is a factor that weighs heavily in favour of the grant of the visa.

   Best interests of minor children – 8.4 of Direction 99

5. I must determine whether refusal to grant the applicant the visa is, or is not, in the best interests of a child affected by the decision. The following factors that I must consider where relevant to this application include:[6]

   (a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

   (b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

   (c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

   (d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

   (e) whether there are other persons who already fulfil a parental role in relation to the child;

   (f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   (g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

   (h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

   [6] Direction 99 at 8.4(4).

6. The applicant has a daughter and a son who are 10 and 4 years old.  There is no doubt that the applicant is a loving and caring father.  Since being incarcerated he has done his best to maintain that loving relationship.  The applicant’s partner says that she is struggling and that she needs him to be released so he can resume his parental role for her benefit and the benefit of the children.

7. The applicant’s partner and her family gave evidence about what a good father he was and how his children love him.  The applicant’s brother said the same thing.  I have no doubt that his children do love him and that, despite their time apart, their relationship is strong and will only get stronger if he is released into the community to be with them.  He would play a positive parental role in the future with his children.  There is no suggestion of any history of domestic violence within this family unit.  It is in the best interests of his children for the applicant to be reunited with them.

8. I give separate consideration to the applicant’s nieces and nephews from his brother’s side of the family.  They are 14, 11, 8 and 4 years old.  I heard evidence from the applicant’s brother and his wife who both support the applicant.  They said that the applicant is a loving uncle who has regularly visited and been involved with the children’s birthdays and milestones.  It would be in the best interests of these children for the applicant to be released so that he could assume his role as an attentive uncle.  I give this factor less weight because he has been absent due to his prison sentence and time in detention and because it is a non-parental relationship.

9. I conclude that the best interests of minor children is a factor that weighs very heavily in favour of the grant of the visa.

   Expectations of the Australian community – 8.5 of Direction 99

10. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[7] The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community.  His criminal conduct was very serious but, for the reasons set out earlier in these reasons, I do not consider that there is an unacceptable risk of further re-offending by the applicant.   

    [7] Direction 99 at 8.5(1).

11. I take into account that the applicant has remained in Australia unlawfully and without a valid visa for a very significant period.  In doing so, the applicant has failed to respect Australia’s law enforcement framework and its migration laws.  The applicant gave candid evidence about being scared to approach the immigration authorities because he did not want to be separated from his partner (with whom he had fallen in love) and then his children.  Nevertheless, the applicant has failed to live up to the expectations of the Australian community and he should expect to have his visa application refused. 

12. I conclude that the expectations of the Australian community is a factor that weighs against the applicant and I give it moderate weight in all the circumstances.

    Other Considerations

13. In deciding whether to refuse to grant the applicant’s visa, I must also take into account the ‘other considerations’ listed in Direction 99, but these are not exhaustive.[8] I must consider and understand the representations received from the applicant.

    [8] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.

    Legal Consequences of Decision – 9.1 of Direction 99

14. The applicant is not covered by a protection finding for the purposes of paragraph 9.1.1 of Direction 99.  He does not raise any claims which may give rise to non-refoulement obligations for the purposes of paragraph 9.1.2 of Direction 99.  This consideration is not relevant to my decision.  I give it neutral weight.

    Extent of impediments if removed – 9.2 of Direction 99

15. Direction 99 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to Tonga in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the applicant’s age and health;

    (b)whether there are substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to him in that country.

16. The applicant is in relatively good physical health.  He is fluent in Tongan and lived there until the age of 23.  There would be no substantial language or cultural barriers.  He still has some family in Tonga.  There would be a period of readjustment required but no significant impediments.  As a Tongan citizen he would have access to the available medical and economic support.  The applicant would face significant emotional hardship if he is returned to Tonga without his partner and his children.  This would impact his mental health and could have flow on consequences in terms of getting a job but overall, I consider that the applicant is likely to be able to establish himself and maintain basic living standards in Tonga.

17. This is a factor that has no appreciable impact and I consider it weighs neither for or against the grant of a visa.

    Impact on victims – 9.3 of Direction 99

18. There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.

    Impact on Australian business interests – 9.4 of Direction 99

19. There was no evidence of impact on business interests within the meaning of the Direction. This factor is neutral.

    Conclusion as to whether to exercise the discretion to refuse the visa

20. I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to determine whether to exercise my discretion to refuse to grant the visa to the applicant.

21. The primary considerations of family violence and the protection and expectations of the Australian community weigh in favour of refusing to grant the visa, but in my view, they are outweighed significantly by the countervailing considerations, namely, the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children.  The applicant has used his time outside of the community to adequately rehabilitate himself such that he is a low risk of reoffending.  His offending, whilst serious, was confined to a short period of his life and his time in Australia.  He contributed to the Australian community by helping to raise his family and by his church activities for a period of 10 years before he committed his crimes. 

22. The applicant has the benefit of the many strong relationships with family members that he has built over the years he has been in Australia.  These family members have offered to provide him with the support he needs to reintegrate into the community and to not re-offend.  The applicant was a good and attentive father before his incarceration, and I have no doubt he will be a good father upon his release.  I place very considerable weight on the interests of the applicant’s two children which favour him being reunited with them.  They are only 4 and 10 years old and would suffer significantly if their father was not returned to them.  Conversely, they will benefit significantly if their father is able to resume his role as a parent and help with their upbringing.  I also give significant weight to his partner who has been in a loving relationship with him since 2010.  Their relationship has faced some hurdles over the years but it remains strong.  His partner wants the applicant to be released to help her cope with bringing up the children.  She has her own health issues and cannot continue to rely on the support currently being given by her aging mother.  If he were not released it would have a devastating impact on her, and the children.  I can understand why she has decided not to uproot herself and her children from Australia if the applicant is required to return to Tonga.  It is in the best interests of her and the children for the applicant to be released from detention.

23. In all of these circumstances I would not exercise a discretion to refuse to grant the applicant the visa.

    DECISION

24. The Tribunal sets aside the decision under review dated 3 April 2023 and substitutes a decision to not refuse to grant the applicant a bridging visa

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

............................[sgd]............................................

Associate

Dated: 14 June 2023

Dates of hearing:	6 and 7 June 2023
Advocate for the Applicant:	Applicant's Partner
Advocate for the Respondent:	Hee-Jung Kim
Solicitors for the Respondent:	Australian Government Solicitor